“I, John Brown, am now quite certain that the crimes of this guilty land will never be purged away but with blood. I had, as I now think, vainly flattered myself that without very much bloodshed it might be done.”
These were the prophetic last words of the great American abolitionist before he was hanged by the State of Virginia, officially for the crimes of treason against a state he was not a citizen (Virginia) for a murder the state could not prove he committed and for that nebulous charge of “conspiracy” which governments have resorted to when either no crime has been committed or the state is unable to provide proof that a crime has been committed.
Nearly ten years earlier, the United States Supreme Court had held that Blacks were not citizens and therefore had no rights. This ruling set off a chain reaction which culminated in the American Civil War. A war which resulted in the deaths of more Americans than all other wars combined.
Shortly after the end of the US Civil War, several amendments to the United States Constitution were enacted. One of these was the 14th Amendment which applied all of the rights inherent to White Americans to all Americans, regardless of their race.
Today, one of the great divisions in the United States is a division over the Second Amendment right of private citizens to keep and bear arms. Unlike the 1850 Supreme Court decision which held that Blacks are not persons, the US Supreme Court held in 2008 that the Second Amendment is an individual right. Two years later, the same five US Supreme Court Justices held that, via the 14th Amendment, a Black man by the name of Otis McDonald has a right to possess a handgun under the Second Amendment and that right is fundamental and applies to all Americans, regardless of their race and regardless of where they live in this nation.
The State of Florida has convicted a young Black man, Dale Lee Norman, for what the state claims is not a right under either its state constitution or a right under the Constitution of The United States but is, indeed, a crime.
Mr. Norman was convicted for the “crime” of openly carrying a handgun in the State of Florida.
Ironically, at the time of his arrest, Mr. Norman had just received a license from the state to carry a handgun concealed in public.
Mr. Norman challenged his conviction which has now made it all the way to the Florida Supreme Court. Today, the Florida Supreme Court heard oral arguments in the case and it would be an understatement to say that the hearing did not go well for Mr. Norman which in turn means the hearing did not go well for the Second Amendment.
Not one of the seven Florida Supreme Court justices spoke in defense of the Second Amendment right to openly carry firearms in public for the purpose of self-defense.
A couple of the justices recognized the procedural law corner which both the state and the lower state court of appeals had painted the state high court.
In direct conflict with the US Supreme Court decision in District of Columbia v. Heller, which held that a right to carry arms openly is the right guaranteed by the Second Amendment and that concealed carry is not a Second Amendment right, the lower state court of appeals “reasoned” that because the US Supreme Court said that concealed carry can be banned then Open Carry can be banned as well and banned without any justification by the state.
If Open Carry can be banned under the Second Amendment then Open Carry is not a right under the Second Amendment. This is the position of the State of Florida, that Open Carry can be banned because Open Carry is not a right under the Florida State Constitution and because Open Carry is not a right the Second Amendment of the United States Constitution.
Florida Justice Barbara J. Pariente took the lead in trying to persuade the state’s attorney to frame her argument so that her fellow justices could write a decision which upholds Florida’s Open Carry ban under what the courts call “intermediate scrutiny.”
You see, the courts have created a legal fiction that they can uphold clearly unconstitutional laws if the law is narrowly tailored to serve some compelling state interest. And oh by the way, when a fundamental right is at issue, the burden of proof is on the government hence the efforts of Justice Pariente for the state’s attorney to throw her a bone by following Justice Pariente’s lead and uttering the “magic words” which would enable the Florida high court to uphold the clearly unconstitutional Open Carry ban.
The state’s attorney refused to budge. She, the state’s attorney, insisted time and again that the decision by the State of Florida to ban Open Carry in 1987 was a “policy choice” by the state legislature which requires no burden of proof for the state to justify.
That is reason enough for the State of Florida to lose but it won’t. The Florida Supreme Court will assume the role of the state’s attorney and fabricate an argument in support of the Open Carry ban which was not made either by the state’s attorney or by the lower appellate court and for which not a single shred of evidence was submitted by the state in support of its ban.
The Florida Supreme Court will do the same thing as did two Federal judges from the 9th Circuit Court of Appeals. They will fabricate a decision out of whole cloth, more accurately in the words of the dissenting judge in that case (Peruta v. San Diego) the decision will have been fabricated out of no cloth. It will be a decision the Florida Supreme Court justices made up out of their imaginations.
I hope that I am wrong but I have read one Second Amendment decision after another in which judges have shown nothing but contempt for the Second Amendment and nothing was said by any of the Florida State Supreme Court justices today which would give me pause to believe they will be any different.
The next, and final, step after the Florida Supreme Court hands down its inevitable decision that there is no right to openly carry a firearm under the Second Amendment (or if there is a right to do so it can be banned) is the United States Supreme Court.
Here is a link to the oral arguments in Florida v. State of Florida -> http://wfsu.org/gavel2gavel/viewcase.php?eid=2364
Here is a link to a page at my website containing video of Mr. Norman’s arrest, video of the hearing before the Florida State Court of Appeals and a link to the video of today’s hearing -> http://blog.californiarighttocarry.org/?page_id=2318
Folks have asked what has this case to do with my lawsuit which seeks to overturn California’s ban on openly carrying loaded and unloaded firearms in public?
There are many reasons, not the least of which is that it was the now vacated (dead), sharply divided three judge panel decision in Peruta v. San Diego which the Federal district court judge S. James Otero relied upon in holding that there is no right to carry a loaded firearm (openly or loaded) in public, in your motor vehicle or even within the curtilage of one’s home.
The Florida Court of Appeals also relied on the vacated Peruta decision in making its decision as have two Federal district court judges in the District of Columbia: Grace v. DC and Palmer v. DC.
John Brown was hanged before he saw his prophecy come true. If the 9th Circuit Court of Appeals has its way then I will die of old age before my lawsuit to restore Open Carry to California is decided.
That won’t end the division in the United States over the Second Amendment or the other divisions which, if left unresolved, will tear this Nation apart.
It won’t happen today, it won’t happen tomorrow but if this year’s Presidential election races are any indication then we won’t have to wait ten years either.
All that is required is for the courts, legislatures and other morons to continue on the current path and we will have reached the point of no return much sooner than later.
Florida Supreme Court oral arguments in Norman v. State of Florida -> http://wfsu.org/gavel2gavel/viewcase.php?eid=2364 (Unfortunately, the video cannot be embedded here.)